Sinha, C.J. - (1.) This is an appeal against an order of A.C. Sen, J., dated March 31, 1966. The facts are briefly as follows: The Appellant Rani Luxmi Devi is a citizen of Nepal. She has, however, had a long connection with India and is an Assessee under the Income -tax Officer, 'G' Ward, District II(2), Calcutta, being the Respondent No. 1 in this appeal. According to the Appellant, she was until recently the owner of No. 11 Theatre Road, Calcutta, and was residing there. According to her, on January 30, 1964, she sold the said premises No. 11 Theatre Road to Messrs. Ruby Insurance Co., Calcutta, and left for Allahabad. From there she went to Indore. She states that she resides at Indore and at Darjeeling where her husband has a dwelling house. On March 28, 1962, the Appellant was served with 13 notices under Sec. 34 of the Indian Income -tax Act, 1922 (hereinafter referred to as the said Act) in respect of the assessment for 1940 -41 to 1951 -52, stating that her income for the relevant years had escaped assessment and was going to be reassessed, and she was called upon to file a return. On April 5, 1963, the predecessor of the present Respondent No. 1 directed the Appellant to file a return under Sec. 34(1)(a), but she failed to do so. On March 30, 1964, the Respondent No. 1 passed an ex parte order of assessment for the assessment year 194344 under Sec. 23(4) read with Sec. 34 of the said Act. Thereafter, a demand notice was issued under Sec. 29 of the said Act for Rs. 2,22,174 -47 nP. and this demand is stated to have been served on the Appellant on March 30, 1964, by affixation. It is unnecessary to multiply the facts, because we have before us the return of the peon, Purna Kamal Chakraborty, who served the said notice and it runs as follows: I, Purna Kamal Chakraborty, son of late Kali Kamal Chakraborty, attached to Dist. II(2), do hereby solemnly declare that on March 30, 1964, I was given by the Income -tax Officer, 'G' Ward, Dist. II(2), Calcutta, a notice under Sec. 29 (D.N. challan & copy of A.O. & Assessment from) of the I.T. Act, 1922, for the assessment year 194344 - for service, on Sm. Rani Luxmi Devi, w/o Commanding Genl. Sir Bahadur Shumsher Jung Bahadur Rana of 11 Theatre Road, Calcutta. That I went to the place, 11 Theatre Road, Calcutta, on March 30, 1964, at 4 p.m. As the said person was not available in the above place I affixed the notice on the outer gate of her house in the presence of Sri Gouri Sankar Ghosh, Inspector of Income -tax, Dist. II(2), Calcutta.
(2.) There is also a declaration made by Gouri Sankar Ghosh, Inspector of Income -tax, Dist. II(2), Calcutta, on the same date, namely March 30, 1964, in the following terms: I hereby declare that notice under Sec. 29 (demand notice, challan and copy of the assessment order and assessment form) of I.T. Act, 1922, for the assessment year 1943 -44 in the name of Sm. Rani Luxmi Devi, w/o Commanding General Sir Bahadur Shumsher Jung Bahadur Rana, has been affixed on the outer gate of 11 Theatre Road, Calcutta, by Sri Purna Kamal Chakraborty, notice sever, Dt. II(2), Calcutta, in my presence.
(3.) In the application in the Court below, it was the service of the demand notice which was challenged. We are not concerned with the assessment order but only with regard to the service of notice under Sec. 29. It is not disputed before us that notice under Sec. 29 must be served before the amount of the income -tax becomes recoverable. It is not also disputed before us that the service of the notice must be made in accordance with Sec. 63 of the said Act, which provides that notice of requisition under the said Act must be served on the person therein named either by post or through Court as if it were a summons under the Code of Civil Procedure, 1908 (V of 1908). Thus the notice in question had to be served as a summons under the Code of Civil Procedure. It is not also disputed that the service must be under Order 5, Rule 17 of the Code of Civil Procedure as amended by this High Court. The amendment came into effect on July 25, 1928. The amended Rule 17 runs as follows: ...where the Defendant is absent from his residence at the time when service is sought to be effected on him thereat or there is no likelihood of his being found thereat within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, not any other person upon whom service can be made the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the Defendant ordinarily resides or carries on business or personally works for gain and shall then return the original to the Court from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.;